The Advocate General (AG) has opined that a search engine's copying and indexing of an online database will only amount to re-utilisation and extraction of the database if it adversely affects the database maker's investment in obtaining, verifying or presenting the database contents.
Article 7 of the Database Directive (96/9/EC) (Article 7) provides that, where there has been, qualitatively or quantitatively, a substantial investment in the obtaining, verification or presentation of the contents of a database, the maker of the database may prevent extraction or re-utilisation of the whole or of a substantial part, evaluated qualitatively or quantitatively, of the database contents.
The European Court of Justice (ECJ) has held that use of a meta search engine can, in certain circumstances, constitute re-utilisation of the contents of a database within the meaning of Article 7(2)(b) (Innoweb BV v Wegener ICT Media BV, Wegener Mediaventions BV, www.practicallaw.com/3-555-4649).
C owned and managed a website with a searchable database of job advertisements published by employers. M operated a specialist search engine for job advertisements which indexes websites containing job advertisements, including those featured on C’s website. M’s search engine used metatags, which had been added to each page of C's website by C, in order to redirect end users to C’s website where they could consult the database of job advertisements. M’s search results also provided hyperlinks to job advertisements on C’s website.
The Latvian Court referred to the ECJ the questions of whether the use of a hyperlink to redirect users to C’s website constitutes re-utilisation of the underlying database of job advertisements, and whether the use of the metatag data constitutes an extraction from the database.
The AG opined that Articles 7(1) and (2) should be interpreted to mean that a search engine which copies and indexes the whole or a substantial part of the contents of databases which are freely accessible on the internet, and then allows its users to search those databases according to criteria that are relevant from the aspect of their contents, extracts and re-utilises those contents for Article 7(1) purposes. However, the database maker is only entitled to prevent this extraction or re-utilisation if it adversely affects its investment in obtaining, verifying or presenting those contents; that is, if it risks the possibility of recouping that investment by the normal exploitation of the database. This is for the referring court to determine.
The national courts must also ensure that the database maker's exercise of its rights under Article 7(1) do not result in an abuse of a dominant position under EU or national competition law.
M’s search engine had a different function from a meta search engine such as that in Innoweb, as it did not use the search forms of the websites on which it allowed searches to be carried out and did not translate in real time its users' requests into criteria used by those forms. Instead, it regularly indexed those sites and kept a copy on its own servers and, by using its own search form, enabled users to carry out searches according to the criteria which it offers. It therefore operated similarly to general internet search engines such as Google but, while general search engines cover in principle the entire internet, a specialist search engine is programmed to index only the websites of its area of specialisation, here sites containing job advertisements.
In so far as those websites were databases protected by the database right, the specialist search engine made it possible to explore the entire contents of those databases, and to re-utilise those contents, in the sense given to the term re-utilisation by the ECJ in Innoweb. Also, by indexing and copying the contents of the website to its own server, the search engine extracted the contents of the databases of which those websites consisted. The provision of the hyperlinks to the advertisements on C's website and the reproduction of the information in the metatags on that site, were merely external manifestations, of secondary importance, of that extraction and that re-utilisation. The facts were therefore not substantially different from the situation in Innoweb.
It follows that a search engine that copies and indexes the whole or a substantial part of databases which are freely accessible on the internet, and then allows its users to search those databases, effects an extraction and a re-utilisation of those contents, within Article 7(2).
However, the legislative intention in protecting databases under Article 7 was to balance, based on the concept of the database maker's investment, the interests of the operators of databases whose contents were aggregated and those of content aggregators and their users. The criterion of an adverse effect on the investment, in the sense of the risk to the possibility of recouping that investment, as a condition of the grant of database right, would make it possible to attain the database right's objectives without disproportionately limiting innovation on the information market. Article 7's wording makes it possible to have recourse to such a criterion, as it follows from the wording that its primary objective is to limit protection by the database right solely to databases the creation and functioning of which require substantial investment.
The AG's suggested imposition of a condition that adverse impact on the database maker's investment is required in order for the database right to be infringed, would add a new and additional requirement for infringement that is not expressly stated in the Directive. Before this opinion, it was generally assumed that extracting or re-utilising all or a substantial part of a database would necessarily cause significant detriment to the investment and constitute an infringement. The opinion suggests that this analysis is not correct, and that there may be some cases where there is an extraction or re-utilisation of all or a substantial part of a database which does not adversely affect the investment and should not be considered an infringement. It remains to be seen whether the ECJ will follow the AG's interpretation.
Case: SIA CV-Online Latvia v SIA Melons C 762/19.